Court of Massachusetts
CRESTA CONSTRUCTION, INC., & United States Fidelity
and Guaranty Company.
Aug. 12, 2008.
By the Court (DUFFLY, ARMSTRONG & BERRY, JJ.).
AND ORDER PURSUANT TO RULE 1:28
is a construction contract case involving construction
of a police and ambulance building, including a receiving
deck and platform, for the town of Harvard. Cresta
Construction, Inc. (Cresta) was the general contractor
and C. Max, Inc. (C. Max) was the steel fabrication
subcontractor. The project got off to a rocky start
because the foundation subcontractor was not timely
and did its work so badly that much of the foundation
work had to be redone. C. Max was delayed in starting
work, first, because it could not come on site while
the foundation work was being done (actually, misdone),
and second, when it was finally given access to the
site, it was ordered to fix the foundation subcontractor's
mistakes. It was also told the project was behind
and it would not be paid unless it finished its augmented
work on the original schedule (i.e., put the project
back on schedule). It was given little assistance
from Cresta on decisions it had to make and it was
not given any leeway from the architect on reasonable
deviations from specifications. A Superior Court judge,
after hearing the evidence, took the view that C.
Max soldiered on the best it could in extremely difficult
circumstances and was entitled to be paid for its
the primary issue, the evidence admitted below is
reasonably susceptible of at least two conflicting
interpretations: (i) that C. Max performed shoddy
work; or (ii) that the problems noted by Yankee Engineering
and Testing, Inc., were the result of preexisting
foundation and other errors not attributable to C.
Max. The judge apparently adopted the latter interpretation,
and we are not prepared, on this record, to find the
judge's perception clearly erroneous. Moreover, contrary
to the defendants' suggestion, the judge's findings
as to C. Max's substantial performance, the additional
work performed by Goldsmith, Prest, & Ringwall;
Champion Steel, LLC; and others, and any claim of
delay caused by C. Max are internally consistent and
adequately supported. Accordingly, we find no reason
to question the judge's decision to disallow the defendants'
affirmative defenses as well as Cresta's counterclaim.
well supported is the judge's finding that Cresta
did not timely pay C. Max on its, among other, March,
May, June, and July progress applications (amounting
to some $62,452, or roughly 73 percent of C. Max's
total claim). Because these applications were submitted
before Cresta had cause to complain of unfinished
or defective work, we can perceive no adequate excuse
for such withholding.FN1 Accordingly, as the judge
held, such prior material breach excused C. Max's
subsequent performance failures, if any. See Ward
v. American Mut. Liab. Ins. Co., 15 Mass.App.Ct. 98,
100-101 (1983); Lease-It, Inc. v. Massachusetts Port
Authy., 33 Mass.App.Ct. 391, 396-397 (1992).
Without deciding, in a proper case we assume that
a general contractor may justifiably withhold
progress payments when necessary to remedy a subcontractor's
deficient work. Such proposition conceivably could
excuse Cresta's decision to withhold payment on
C. Max's August application. The same rationale
does not apply to excuse any earlier withholding.
a related note, we need not address the judge's comments
regarding G.L. c. 30, § 39F. Contrary to the
defendants' suggestion, the judge neither awarded
damages pursuant to § 39F nor held that a §
39F violation constitutes a breach of contract. Instead,
the judge's dicta, primarily boilerplate observations,
appear to have been intended merely to highlight that
C. Max was entitled to prompt payment upon Cresta's
receipt of payment by the awarding authority, a proposition
that would seem not to be in serious question. Also,
the judge's findings that C. Max was not responsible
for any project delays were well supported.
find no fault in the judge's award of $8,000 to C.
Max for corrective foundation work. Without deciding,
and assuming Cresta preserved the point, we doubt
that a change order was required.FN2 Regardless, given
the judge's well-supported findings that C. Max had
been compelled to perform this additional work, and
that its additional work was reasonable, the judge's
alternative quantum meruit based award was appropriate.
See PDM Mechanical Contractors, Inc. v. Suffolk Constr.
Co., 35 Mass.App.Ct. 228, 231-233 (1993). Contrary
to the defendants' implication, there is no indication
that the judge awarded duplicative damages under contract
and quantum meruit theories.
We note that nothing in C. Max's subcontract required
C. Max, as opposed to Cresta, to obtain a written
change order before undertaking new or additional
work. Contrast Exh. 15 at 4, 4. Neither general
contract paragraphs 4.3.1 (defining "claims"),
4.3 .5 (requiring written notice of a "claim"
for additional cost), nor 7.2.1 (defining a "change
order") would appear to require a written
"change order" or notice of a "claim"
as between C. Max and Cresta, being instead limited
to matters concerning Harvard's-as opposed to
Cresta's-duty to pay, a matter not at issue here.
See Exh. 1, 4.4.1; Exh. 15 at 4, 1(a)-(b).
we agree that the judge, on this record, could reasonably
have found in C. Max's favor on its c. 93A claim,
the evidence, as suggested, is not so overwhelming
or without dispute that C. Max may be said to have
carried its burden of persuasion as matter of law.
See Anthony's Pier Four, Inc. v. HBC Assocs., 411
Mass. 451, 476 (1991) (determination of c. 93A violation
ordinarily reserved for fact-finder and must stand
unless clearly erroneous). The judge did not err in
dismissing C. Max's c. 93A claim.
for postjudgment interest should be directed to the
Superior Court. C. Max may apply to this court within
fourteen days of the date of the rescript, under Fabre
v. Walton, 441 Mass. 9, 10-11 (2004), for an award
of its attorney's fees and costs reasonably incurred
defending the judgment on appeal. See G.L. c. 149,
§ 29, sixth par. The defendants' opposition,
if any, shall be submitted within ten days thereafter.FN4
The Superior Court docket sheet references judgments
for costs and attorney's fees that we deem are
orders incorporated in the judgment (entered January
10, 2006). As no party has raised or made any
argument as to these costs or attorney's fees,
these issues are waived on appeal. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
affirmed. Order denying motion for new trial affirmed.
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